Sentencing for Manslaughter in Cases Involving Intimate Relationships R v Lavallee

Canada and Self-Defense 37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]

Criminal Code S 718.2(a) (ii) Sentence is increased or decreased depending on aggravating or mitigating circumstances relating to offense or offender

Battered Women Syndrome Is a legitimate CONSIDERATION in terms of sentencing as a mitigating circumstance, even if offender has pled guilty

DETERMINING FACTORS MITIGATING FACTORS: Factors that could be considered to lessen the sentence of accused EXCULPATING FACTOR: clear a person of blame completely AGGRAVATING FACTORS: factors that could be considered to sentence/increase the sentence of accused

Factors that Influence Sentencing INTOXICATION: self-induced not considered a defense (re: R v Daviault) Can be considered if escape of abuse is through excessive alcoholism MENTAL HEALTH/PSYCHOLOGICAL ISSUES Could be BWS, depression- person must show willingness to resolve mental health issues to be factor in sentencing

Factors Influencing Sentencing (cont.) MENTAL HEALTH...CONT Schizophrenia, “psyhological instability” All goes to affecting MENS REA (criminal mind-set) DOMESTIC NATURE OF THE OFFENCE Victim of crime was perpetrator of domestic violence- could be mitigating factor, Includes “dynamics of spousal abuse” If abuser harms abusee- aggravating factor

Factors Influencing Sentencing CHILDREN Presence of children during commission of offense could be considered an aggravating factor Unless protecting children was dominant purpose